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Physician-assisted dying: Where are we now and where are we going?

What is the current status of physician-assisted dying in Canada?
For most of Canada’s history, physician-assisted dying was a crime: sections 14 and 241(b) of the Criminal Codeabsolutely prohibited any person from assisting another person to commit suicide and provided that any person who violated this prohibition was liable to imprisonment for up to 14 years.

On February 6, 2015, things began to change. On that day, the Supreme Court of Canada (the “Court”) declared in Carter v. Canada (Attorney General), 2015 SCC 5 that sections 14 and 241(b) of the Criminal Code are invalid to the extent that they prohibit physician-assisted dying for a competent adult person who:

clearly consents to the termination of life; and

has a grievous and irremediable medical condition (including an illness, disease or disability) that causes
enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Importantly, however, the Court suspended its declaration of invalidity for 12 months (until February 6, 2016), to give Parliament and the provincial legislatures time to draft new, constitutional legislation governing physician-assisted dying.

On December 10, 2015, Quebec’s legislature responded to the Carter decision by enacting the Act respecting end-of-life care. Among other things, the Act respecting end-of-life care specifies the criteria that must be met for a person to obtain physician-assisted dying in Quebec and sets out special rules for institutions and professionals which provide end-of-life care in Quebec. To date, neither Parliament nor any other provincial legislature has enacted legislation governing physician-assisted dying.

On January 15, 2016, at Parliament’s request, the Court extended the suspension of its declaration of invalidity for a further 4 months (until June 6, 2016): see Carter v. Canada (Attorney General), 2016 SCC 4. However, to reduce the harm resulting from the extension, the Court granted two exemptions. The effect of these exemptions is that during the extension period (i.e. from now until June 6, 2016):

persons in Quebec may access physician-assisted dying in accordance with the provisions of the Act
respecting end-of-life care; and

persons outside Quebec may access physician-assisted dying in accordance with the Carter decision, and
with the approval of the superior court in their jurisdiction.

What’s next?
Neither Parliament nor the provincial legislatures are obligated to formulate a legislative response to the Carter decision. However, both would be wise to do so.

Ideally, Parliament should revise the Criminal Code to clarify the extent to which physician-assisted dying is criminal. To the extent that physician-assisted dying is not criminal, the provincial legislatures (which have jurisdiction to regulate health care) should enact legislation addressing, among other things:

whether physician-assisted dying will be publicly funded;

the criteria that must be met for a person to access physician-assisted dying (e.g. age, mental capacity,
residency);

the processes that will be used to evaluate whether a person has met the criteria to access physicianassisted
dying;